Delhi District Court
State vs . : 1). Irshad Ali on 24 August, 2016
IN THE COURT OF ASJ - 03 NORTH ROHINI COURTS : DELHI Sessions Case No:58338/16 FIR No. : 350/09 U/s : 395/397 IPC & 25/27/54 Arms Act P.S. : S.P. Badli State Vs. : 1). Irshad Ali S/o Sh. Sahid Ahmed R/o H.No:64, Village Badli, Delhi. 2) Ashok Kumar S/o Sh. Hukam Singh R/o H.No.J-631, Jahangir Puri, Delhi. 3) Ekant Bansal S/o Sh. Gurcharan Das R/o H.No. WZ-1811, Ram Bagh, Delhi. 4) Sikander S/o Sh. Ram Narayan R/o A-681, K-block, Behind ITI, Jahangir Puri, Delhi. 5) Brijesh Singh S/o Sh. Munni Singh R/o Village Jiapur, PS:Mehnaz Pur, Distt. Azamgarh, UP. Offence complained of: 395/397 IPC & 25/27/54/59 A Act Plea of accused : Pleaded not guilty Final Order : Acquitted u/s 412/328 IPC : Convicted U/s 395/397 IPC Date of committal : 20.05.2010 Date of Judgment : 24.08.2016 State Vs. Irshad Ali etc. FIR No:350/09 Page 1 of 48 JUDGMENT
1. On 05.12.2009 truck No.HR 47B 0420 driven by Rohtash @ Kaley and truck No. RJ 14GA 6283 driven by Manzoor Alam on which conductor was Ram Avtar were loaded from Haroor, Tehsil Sidhapur, North Karnataka with Supari for bringing it to Delhi. On the intervening night of 1112/12/2009 at about 1 am both the trucks reached at Haryana Rajasthan Border at Shahjan Pur. Truck No. RJ 14GA 6283 was moving ahead. Rohtash made a call from his mobile no.9466555813 on mobile phone of Manzoor Alam bearing No. 9971164718 that his truck has developed some mechanical defect. On this Manzoor Alam stopped his truck. His cleaner kept on sitting in the truck. Manzoor Alam went towards the truck of Rohtash. When Manzoor Alam went towards of Rohtash he noticed that some body had started his truck. One scorpio vehicle was also found parked in front of the truck of Rohtash. 45 persons got down from that scorpion and they caught hold of Manzoor Alam. They told him don't go near the truck otherwise he will be killed. One person put a pistol on his head. They took him towards his truck and forced him to board in the truck. Out of those 5 persons State Vs. Irshad Ali etc. FIR No:350/09 Page 2 of 48 three persons boarded the truck. He noticed that two persons were already in the truck and they had over powered his conductor. One person was sitting on the driving seat and other person was sitting on the conductor seat. The persons who put him in the truck were calling one of their companion by the name of Sikander. They gave beatings to Ram Avtar as well as Manzoor Alam and by showing pistol ask them to keep mum. They forced them to eat some tablets and thereafter closed their mouth with the help of tape and also tied their hands and feet. After some time they became unconscious. Next day at about 7 / 8 pm they regained consciousness. Some passersby opened their tape and untied them. They came to know that they are at Bawana, Narela. They told all these facts after reaching the transport company. Those persons had taken away the truck loaded with Supari, the mobile phone, driving license and Rs.7,000/ along with all the documents of the vehicle. Case u/s 395/397 IPC and 25/27 Arms Act was registered. During investigation it came to information that in case FIR No:629/09 dt. 24.12.2009 u/s 25/27 Arms Act and 411/34 IPC the accused persons have been arrested by PS: South Rohini and they have State Vs. Irshad Ali etc. FIR No:350/09 Page 3 of 48 confessed about the commission of this crime. With the permission of the court accused Ashok, Ekant Bansal, Irshad Ali, Sikander and Rafiq were formally arrested in this case. However during investigation it was found that Rafiq is not involved in this case. The scorpion vehicle No. DL 3CAG 4215 used in this offence was found to be stolen from the area of Shadipur, Patel Nagar, Delhi regarding which case FIR No.61/09 u/s 379 IPC was found registered at PS: Ranjit Nagar. They disclosed that they took the truck to Vijay Yadav in Azamgarh UP and sold it to Vijay Yadav. They told that Rohtash @ Kaley was also with them but neither Vijay Yadav nor Rohtash could be arrested. It was also told that scorpio vehicle has been taken away by Shakeel @ Bhudha but he also could not be recovered. On the intervening night of 34 January 2010 the 220 bags of looted Supari were recovered from the possession of Brijesh Singh @ Guddu. Test identification Parade was got conducted wherein Ashok Kumar, Irshad Ali and Ekant Bansal were identified in Test Identification Parade. After completion of investigation the charge sheet was filed. Ld. MM after completion of investigation committed the case to the Sessions Court as offence u/s 395 and 397 are State Vs. Irshad Ali etc. FIR No:350/09 Page 4 of 48 exclusively triable by the Sessions Court.
2. Accused Brijesh Singh was charged for the offence punishable u/s 412 IPC and accused Irshad Ali, Ashok Kumar, Ekant Bansal and Sikander were charge for the offence punishable u/s 395 r/w 34 IPC and 328 r/w 34 IPC. Accused Ashok Kumar was also charged for the offence punishable u/s 397 IPC. All the accused persons pleaded not guilty and thereafter case was fixed for prosecution evidnece.
3. Accused persons Irshad Ali, Ekant Bansal and Sikander admitted the Test Identification Parade proceedings and the statement of the Ld. Proxy counsel in this regard and also of Ashok were recorded.
4. Manzoor Alam the driver of the truck No. RJ 14GA 6283 was examined as PW1. He deposed that he was working as driver with Hyderabad Road Carriers having their office at Sanjay Gandhi Transport Nagar, Delhi. He was the driver on truck No. RJ 14GA 6283 and Ram Avtar was the conductor. They were coming from Banglore to Delhi and truck was loaded with Betel nut (Supari) from Hiroor, situated at a distance of 70/80 km. From Banglore. One more truck No. HR 47B 0420 State Vs. Irshad Ali etc. FIR No:350/09 Page 5 of 48 driven by Rohtash was also loaded with Betel nut (Supari) from same place and was coming to Delhi. At about 1:30 am when they were on National Highway No.1 and had crossed Shahjahan Pur Border he received a call on his mobile from Rohtash, who told that his truck has developed a snag " usne kaha mere truck ne hawa le li hai and chabi mangi". This witness stopped his truck and moved towards the back side of his truck I.e towards truck of Rohtash leaving Ram Avtar in truck. He left the ignition key in the truck. He also noticed one black colour 'scoripo' behind his truck and truck of Rohtash was behind the 'scorpio'. He met Rohtash and asked him as to what had happened. This witness also asked him to take diesel from his truck but Rohtash told that he will send his conductor to nearby petrol pump to bring diesel. Conductor of Rohtash left with a bucket to bring diesel. In the meanwhile this witness noticed that his truck has been started by someone. This witness told Rohtash that Ram Avtar does not know how to drive and expressed his surprise as to who started his truck. He told Rohtash to call police and also the owner. But Rohtash did not make any call and indulged him in unnecessary conversation. This witness asked Rohtash to accompany him State Vs. Irshad Ali etc. FIR No:350/09 Page 6 of 48 and he started running after his truck Rohtash however asked him not to run otherwise he will be shot by the Badmashs. In the meanwhile two persons came there one put pistol on his head and asked him not to shout. They took him towards his truck. He noticed 23 persons already sitting in his truck and found that Ram Avtar has already been over powered covered with sheet and had been made to lie in the truck. This witness was also made to sit in the truck. He was beaten and made to consume some intoxicating material and thereafter he fell unconscious. When he regained consciousness he found himself lying in Narela, Bawana area in the fields. He was carrying Rs. 7,000/ and driving license which were also missing. Thereafter, he went to the office met the owner and told him the entire story. He called up Rohtash on his mobile but he could not be contacted. This witness identified accused Ashok as the person who put pistol on his head. Ekant Bansal, Irshad Ali and Sikander. Police also prepared site plan of occurrence which he proved as Ex.PW1/A and Ex.PW1/B.
5. During cross examination he stated that he does not know any official by the name of Kanhaiya. He denied the State Vs. Irshad Ali etc. FIR No:350/09 Page 7 of 48 suggestion that he informed Kanhaiya that he had reached Delhi safely with loaded (Betel nut) Supari and would unload the (Betel nut) Supari at Transport Nagar. He met his owner on 12.12.2009 in the morning. He denied the suggestion that he contacted his owner on 19.12.2010. He denied the suggestion that he along with his owner Tarun Jain had misappropriated the goods and concocted this story, after Kultaran Singh lodged an FIR on 18.12.2009. He did not notice the number of the "Scorio'. 'Scorpio' was of black colour. He also did not tell the number of 'Scorpio' to the police. He does not remember his mobile number and also of Rohtash. When he got down from his truck the truck of Rohtash was at a distance of about 10 paces. His truck moved to a distance of about 10 to 15 paces while he was talking to Rohtash. When this witness followed his truck the truck stopped of its own, but he does not know the reason why the truck was stopped. The 'Scorpio' did not move from its place. He did not notice anyone sitting in the 'Scorpio' as it was having black window panes. Irshad Ali was driving his truck. He denied the suggestion that in the similar fashion he got implicated the accused persons in case FIR No.61/09. He denied the State Vs. Irshad Ali etc. FIR No:350/09 Page 8 of 48 suggestion that he knew the accused Ashok before the incident as he was working as mechanic in Sanjay Gandhi Transport Nagar. He is driving since 2003 and got his driving license from Ambala. He got injury in his leg in 2005 and iron rod was inserted in his right leg. Thereafter, he did not get his license renewed. He denied the suggestion that photographs and videos of all the accused were shown to him in the police station. He came to know that Betal nut (Supari) was recovered from the place near Banaras. This witness was also with police at that time. He remained in the police vehicle at the time of recovery. He was not knowing the names of accused persons at the time of incident. He vol. That he was not knowing them. He did not raise alarm as he was threatened on gun point.
6. Ram Avtar was examined as PW2. He was working as conductor on that truck. He also corroborated the testimony of PW1. He deposed that Manzoor Alam stopped his truck after receiving call from Rohtash who told that there is no diesel in his truck. Manzoor Alalm moved towards the truck of Rohtash, in the meanwhile 23 persons boarded the truck. One of them put pistol on his head and forced him to eat something. After consuming it State Vs. Irshad Ali etc. FIR No:350/09 Page 9 of 48 he fell unconsciousness. When he regained consciousness he found himself in Bawana area. He made a call by dialing 100 number from a PCO. Police came there and took him to the hospital. Thereafter he was taken to the owner. He told everything to the owner. The witness has identified Sikander and Irshad Ali as the persons who boarded the truck and it was Sikander who forced him to take the pills. When he regained consciousness he found that Manzoor Alam was also with him at some distance. He has also identified the other two accused.
7. During cross examination by Addl. PP he deposed that Manzoor Alam was also brought in the truck and thereafter his face was covered with the blanket. His hands and legs were tied with the help of tape and his mobile was also looted. Besides Rs.700/ to Rs.800/, the mobile phone of Manzoor Alam was also taken away. Ekant Bansal was on the steering wheel of the truck but thereafter he became unconscious.
8. During cross examination by the defence counsel he stated that he does not remember the mobile phone number of Rohtash and Manzoor Alam. His mobile number is 9837163507. Both of them were taken to the hospital. They told the entire story State Vs. Irshad Ali etc. FIR No:350/09 Page 10 of 48 to the police and also to the owner. Accused Sikander had dragged Manzoor Alam inside the truck. He had never seen any accused persons before the incident. They had gone to police station South Rohini where they had seen the accused persons. He does not remember the exact date. Manzoor Alam was also with them. But he again said that they had gone to police station but accused persons were not shown to them.
9. HC Khem Chand from PS: S.P. Badli was summoned as PW3. He proved the record of Sikander regarding his involvement in case FIR No.416/09 of PS: Alipur. The copy of the record is proved as Ex.PW3/A.
10. ASI Jai Bhagwan from PS: South Rohini was examined as PW4. He proved the copy of FIR No.629/09 as Ex.PW4/A.
11. Sh. Gopal Sharma was examined as PW5. He was working in PS: Ranjit Nagar and proved the copy of FIR No.61/09 as Ex.PW5/A.
12. HC Sushil was examined as PW6 from PS: S.P. Badli and he proved the copy of FIR No. 350/09 as Ex.PW6/A.
13. Ct. Ajeet was exmained as PW7. He proved the State Vs. Irshad Ali etc. FIR No:350/09 Page 11 of 48 involvement of Ashok Kumar s/o Hukam Singh in 5 cases of different police station and he proved the copy of the record as Ex.PW7/A.
14. Tarun Jain was examined as PW8. He deposed that he is running transport company with his brother Keshav Jain at AW341, first floor Sanjay Gandhi Transport Nagar. On 05.12.2009 one transport company i.e. South North carrier booked two trucks and they sent truck No. RJ 14GA 6283 and HR 47B 0420. After the trucks were loaded with Betel nut (Supari) for delivery in Delhi drivers left for Delhi. Kaley was driver on truck No. HR 47B 0420. He deposed that Kaley mixed up with the criminals and assisted them in looting truck No. RJ 14GA 6283 as well as loaded goods in the truck. The full name of the driver was Rohtash. He told that this fact he came to know from Manzoor Alam, on 12.12.2009 telephonically. Manzoor Alam was driver on truck No. RJ 14GA 6283. His brother lodged the report regarding theft of the truck. The truck has not been recovered till date. All the documents were lying in the truck.
15. During cross examination he deposed that Rohtash after unloading the truck No. HR 47B 0420 left the truck in the State Vs. Irshad Ali etc. FIR No:350/09 Page 12 of 48 office but thereafter he did not meet. He left the truck in the godown without informing anyone. Before the truck was parked by Rohtash @ Kaley they were already knowing about the incident. Manzoor Alam had already met this witness before he contacted Kaley on phone and Kaley told him that he is getting the goods unloaded. The truck was left in the godown at Siraspur where the goods were unloaded. When they reached there the truck had already been unloaded and Kaley was not there. He admitted that Kultaran had suspected his involvement in the incident. At the time of recovery of Betel nut (Supari) from Ajamgarh this witness was also with the police party. He denied the suggestion that the recovery of supari from Ajamgarh was effected at his instance. He denied the suggestion that he has become a false witness in conivance with the police.
16. Kultaran Singh was examined as PW9. He is running a transport company under the name and style of Maha Ganesh Transport carieer at CW71, Sanjay Gandhi Tranport Nagar. Parveen Jain and Arvind Mishra are his partners. On 05.12.2009 M/s. Rashid Traders Haroor, Sidha Pur North Karnataka from Haroor had booked 320 ganni bags of Betel nut State Vs. Irshad Ali etc. FIR No:350/09 Page 13 of 48 (Supari) total weight 16 tonnes from Manglore branch for delivery at Salasar Trader, 2159, 2nd floor Tilak Bazar. The bags were booked from South North Carrier Banglore. Goods were loaded in RJ 14GA 6283. The name of the Munshi was Rinku. Bility was issued dt. 05.12.2009. He handed over the photocopy of the Bility to the IO prepared by Rinku. The seizure memo is proved as Ex.PW9/A. The copy of bility is proved as Ex.PW9/B. Bill Number of Rashid trader is Ex.PW8/A, partner ship document is Ex.PW9/C. He stated that they had lodged the FIR against the owner of truck u/s 406/407 IPC but lateron he came to know that (Betel nut) Supari bags were looted near Shahjan pur border with the truck and the driver and the cleaner were thrown on Narela Bawana road. All the (betel nut) Supari bags were recovered except the 10 bags.
17. During cross examination he deposed that he has not brought original bill and bility photocopies of which were given to the IO.
18. Nishant Arora was examined as PW10. His father is owner of 'Scorpio' car No. DL 3CAJ 4215. He deposed that on 05.12.2009 he parked his car in the gali outside his house. In the State Vs. Irshad Ali etc. FIR No:350/09 Page 14 of 48 morning he found that car is missing. The documents were also in the car. He got registered FIR No.61/09 u/s 379 IPC PS: Ranjit Nagar. The copy of FIR is Ex.PW5/A. He stated that he was called to police station where Ekant Bansal, Irshad ALI and Ashok Kumar were shown to him by the IO and they pointed out his house from where they had stolen the 'Scorpio' car vide memo Ex.PW10/A. He denied the suggestion that accused persons did not point out his house as the place from where the "Scorpio' was stolen.
19. Parveen Jain was examined as PW11. He deposed that on 03.01.2010 he joined the investigation of this case and he along with IO and staff went to District Ajamgarh UP. They reached village Jia Pur from there IO seized 220 ganni bag of red Supari lying in one room of SGRY Khadyan Vitaran Kendra, Jia Pur, PS: Mehnazpur. He identified the bags of Supari as belonging to him. The same were seized vide memo Ex.PW11/A having his signature at point A. thereafter, they returned to Delhi. The Supari was taken on superdari by his partner Kanhaiya Lal. The premises from where the bags were recovered was in possession of Brijesh Singh @ Guddu Pradhan of Village Jia State Vs. Irshad Ali etc. FIR No:350/09 Page 15 of 48 Pur. The recovery was effected on the pointing out of secret informer. He identified one bag of betel nut (Supari) kept as sample as Ex.P1.
20. During cross examination he denied the suggestion that he is intentionally identifying case property at the instance of the police. He stated that the bag containing supari Ex.P1 was not prepared in his presence. It was 11th or 12th month of 2009 when they had gone to Ajamgarh. He does not remmeber the date when they returned from Ajamgarh. They went to 3 police stations. One was Mehnazpur, one was Tarwa but he does not remember the third one. Police official from Mehnazpur was called at Jia Pur by Delhi Police. He does not remember by which mode the police from Mehnazpur was called. He does not remember at what time Mehnazpur police reached at Jia Pur. It was 10 or 11 pm in the night when Supari bags were recovered. 56 labourer loaded the supari bags on the truck. He does not remember the truck number. Police recorded the statement of twothree labourers. He denied the suggestion that he had not accompanied Delhi police to the place of recovery or that his statement was recorded while sitting in the police station. The State Vs. Irshad Ali etc. FIR No:350/09 Page 16 of 48 document which he signed was already written. He does not remember the name of the police official who prepared the same. He remained at Ajamgarh for about 10 to 11 days. He reached 2 days prior to the reaching of Delhi Police and stayed at Banaras where he was having his house. He reached there on the asking of Delhi Police. He did not stay at any police station. It was early morning when they left the spot. He admitted that he has not seen the supari bags prior to the recovery. He stated that the bags of Supari bearing the mark of BAT *** which was of Kanhaiya Lal and when the bags were returned they were having the same mark. He denied the suggestion that he had not joined the investigation with the police.
21. SI Mohd. Saleem Javed was examined as PW12. He is also witness to the recovery and was posted at PS:
Mehnaz Pur at the relevant time. He deposed that on 03.01.2010 at the instance of informer from the room of SGRY Khadyan Vitaran Kendra Sahayak Sehkari Ltd. 220 bags of stolen betel nut (supari) were recovered. He proved the seizure memo Ex.PW11/A. During cross examination by Ld. Addl. PP he deposed that premises of SGRY Khadyan Vitaran Kendra State Vs. Irshad Ali etc. FIR No:350/09 Page 17 of 48 Sahayak Sehkari Ltd was of Pradhan Brijesh Singh.
22. During cross examination by defence counsel he stated that Delhi police reached on 03.01.2010 at 5:10 pm. They left around 11:30 pm in the night and recovery was effected in the late night i.e. on 04.01.2010. There were 45 police officials from Delhi. Munni Singh father of Brajesh Singh, Pradhan of village Jia Pur was called. 23 persons from the nearby places were also called. Munni Singh remained with them till Betel nut (Supari) were loaded in the truck. 89 labourer loaded the truck. He denied the suggestion that his statement was not recorded. The Betel nut (supari) bags were also not sealed.
23. Subhash Chander Mishra was examined as PW13. He deposed that earlier he was employed as Sachiv at Sehkari Simiti Ltd. Jia Pur, Distt. Ajamgarh. He was working as secretary in that Simiti till 1989 and still he is secretary in that Simiti. There were two halls one office room, one consumer room and one secretary room. At that time Brijesh Singh was Pradhan and he also identified the accused. The Hall was used as store where they used to store fertilizer to be disbursed amongst the villagers. He does not remember the exact date but it was perhaps 18th, State Vs. Irshad Ali etc. FIR No:350/09 Page 18 of 48 20th or 22nd January 2010. Two police officials of Delhi Police reached at his house. There he was told by the police that from godown of SGRY Sehkari Samiti 220 bags of Betel nut (Supari) were recovered but he told the police that he is not aware of anything as he did not use to get salary from the department and he used to visit office after the gap of 2 or 3 months. On the dictation of police he gave in writing whatever was dictated as he was afraid of the police and was threatened. He was cross examined by APP for the State. He stated that he did not tell the police that on 11.12.2009 he came to know that Brijesh had opened the room of godown and had kept his Murgi dana in that room or that he reached there and asked Brijesh Singh to vacate that room on which accused told him that it was only for one week thereafter he will vacate and hand over the keys to him. He also denied the suggestion that thereafter on 14.12.2009 he again went to Brijesh Singh who told him that in the night he has kept some more goods and asked for some more time to vacate the room and Brijesh Singh told him that it is only for one week there and thereafter he will vacate. He denied the suggestion that he came to know that accused Brijesh Singh had kept looted State Vs. Irshad Ali etc. FIR No:350/09 Page 19 of 48 goods bags in the godown. He denied the suggestion that he is deposing falsely at the instance of Brijesh Singh who is Pradhan of the village or that he has been won over by the accused.
24. SI Mukesh Antil was examined as PW14. He proved the copy of FIR No.350/09. He deposed that on 18.12.2009 he was assigned the investigation of this case but next morning the investigation was assigned to Inspector Hari Ram Malik because it was a case of Dacoity.
25. HC Surender was examined as PW15. He deposed that on 24.12.2009 he was posted at Special Staff outer district. At about 6:05 pm secret informer gave information to H.C Rohtash that one truck loaded with rice robbed from Alipur area would come from Mangol Puri Industrial Area and would pass from Rohini. Occupants would come to sell the rice and would be armed also. HC Rohtash formed a raiding party comprising this witness, HC Rajesh, HC Jagdish, HC Naresh, Ct. Pawan, Ct. Ajeet, Ct. Narender, Ct. Parveen, Ct. Amit and Ct. Surender Rana. As per the instructions of the senior officer they all left with informer in private vehicle reached near M2K Cinema. At about 6:30 pm made naka bandi on the road going towards M2K State Vs. Irshad Ali etc. FIR No:350/09 Page 20 of 48 Cinema. 45 public persons were requested by HC Rohtash to join but they refused. At about 7 pm one truck was stopped coming from the side of Deepali chowk on service road coming from Jai Pur Golden Hospital, without number plate and took turn towards M2K Cinema. Six persons were there in the truck, however one fled away from there. Remaining five accused were over powered. Accused Ashok was over powered by this witness and Ct. Narender. Accused Ashok was carrying a pistol of 7.5 mm. Remaining accused i.e. Irshad, Ekant, Rafiq and Sikander were also over powered. 193 rice bags were also seized and sealed. All of them were arrested in case FIR No.629/09. The testimony of this witness has gone unchallenged and uncontroverted.
26. HC Rohtash was examined as PW16. He also deposed on the lines of PW15 regarding arrest of the accused persons and their making the disclosure statement. The testimony of PW16 has also gone unchallenged and unconvtroverted.
27. Md. Irfan was examined as PW17. He deals in selling of Betel nut (Supari) under the name of M/s Rashi Trader, State Vs. Irshad Ali etc. FIR No:350/09 Page 21 of 48 Haroor, Siraspur North Karnataka. On 05.12.2009 he loaded two trucks bearing registration No.HR 47B 0420 and truck No:RJ 14GA 6283 with the Betel nut (Supari) bags. The trucks were sent to Delhi for Salasar Traders, Tilak Bazar, Delhi. Truck No.HR47B 0420 was driven by Rohtash and truck No.RJ 14GA 6283 was driven by Manzoor Alam. In each truck 23 bags of Supari were loaded. He also identified the invoice as Ex.PW17/A. The testimony has gone unchallenged and un controverted.
28. Surya Parkash @ Rinku has been examined as PW
18. He was in the transport business. On 04.12.2009 he received phone call from Salasar company for sending Betel nut (Supari) bags. He booked two trucks No.HR47B 0420 and truck No.RJ 14GA 6283 from North Carriage Banglore. On the asking of Rafiq Traders trucks were loaded with Betel nut (Supari) bags and sent to Delhi. The truck started from Banglore on 05.12.2009. Truck No. RJ14GA 6283 was driven by Manzoor Alam and truck no. HR 47B 0420 was driven by Rohtash. Testimony of this witness has also gone unchallenged and uncontroverted.
29. Sh. Shyam Sunder was examined as PW19. He was working as Commission agent for transporters in Banglore. State Vs. Irshad Ali etc. FIR No:350/09 Page 22 of 48 On 04th December 2009 he received phone call from Rinku from Maha Ganesh Transport company operating from cemoga for sending goods to Delhi. At that time trucks bearing No. RJ 14GA 6283 and HR 47B 0420 with their drivers were available. Both trucks were from Delhi Hyderabad Transport company. Manzoor Alam was driver on truck No.6283 and Rohtash @ Kalley was on truck No. 0420. On the asking of Rinku he sent both the trucks to Rashi traders for loading the goods.
30. SI Karan Pal Singh was examined as PW20. On 16.12.2009 he was the investigating officer of case FIR No.61/09 regarding theft of 'Scorpio' car No. DL 3CGA 4215. During investigation the accused persons involved in this case made disclosure statement regarding involvement in the theft of the vehicle. He Interrogated them but lateron case was sent as untraced.
31. ASI Naresh Chander was examined as PW21. On 07.03.2010 on the direction of SI Satish he went to Banglore for investigation. He recorded statement of Surya Parkash, Shyam Sunder and Mohd. Ifran and thereafter returned. He also identified the invoice 0097 as Ex.PW8/A and 0098 as State Vs. Irshad Ali etc. FIR No:350/09 Page 23 of 48 Ex.PW17/A.
32. Ct. Shambhu was examined as PW22. On 15.01.2010 he joined the investigation of the present case with Inspector Hari Ram Malik. On that day accused Ashok Kumar, Irshad Ali and Ekant Bansal were on PC remand. The disclousre statements were recorded which are Ex.PW22/1, Ex.PW22/2 and Ex.PW22/3 respectively. All the three accused persons led the police team to village Shadipur, Khampur West Patel Nagar house and pointed out the place from where they had stolen 'Scorpio' car. Pointing out memo is Ex.PW10/A. Thereafter they led them to Bawana industrial Area and pointing out memo was prepared which is Ex.PW22/4. Thereafter, they led them to border Gugalhota and pointed out the place of occurrence. The pointing out memo is Ex.PW22/5. On 16.01.2010 at about 1:30 pm he along with I.O. and accused Sikander who was in police custody remand and one eye witness Manzoor Alam and Ram Avtar came to police station inquired about their case. They identified accused Sikander. Thereafter, they reached Shahjan pur border and Sikander also pointed out the place from where they looted the truck on the intervening night of 1011.12.2009. State Vs. Irshad Ali etc. FIR No:350/09 Page 24 of 48 The pointing out memo is Ex.PW22/A. Thereafter, accused Sikander led them to village Shadi khampur, West Patel Nagar and pointed out place from where they had stolen 'Scorpio' car. The memo is Ex.PW22/B. Accused also pointed out the place where the cleaner and driver were thrown in Bawana and the memo is Ex.PW22/C. On 18.01.2010 he again joined the investigation with the IO. Accused Ashok Kumar and Sikander led the police team to village in Distt. Ajamgarh UP. They pointed out the shop of Vijay Yadav s/o Sh. Nand Lal. The pointing out memo is Ex.PW22/D. Thereafter both the accused led them to village Jia Pur, PS: Mehrajpur Distt. Ajamgarh, pointed out the house of Brijesh Singh. Pointing out memo is Ex.PW22/E. Both the accused deposed that they delivered looted property to Vijay Yadav and Brijesh Singh pointing out memo is Ex.PW22/F. Nothing material came during the cross examination of this witness.
33. Inspector H.R. Malik was examined as PW23. He is the investigating officer of this case and proved the investigation carried out by him i.e. the pointing out memo's prepared as deposed by PW22.
State Vs. Irshad Ali etc. FIR No:350/09 Page 25 of 48
34. SI Satish Kumar was examined as PW24. The investigation was assigned to him on 30.03.2010. He recorded the statement of Tarun jain, prepared the charge sheet against the accused persons Irshad, Ashok and Ekant. On 30.04.2010 accused Vijay Surrendered in the court. He was formally arrested vide memo Ex.PW24/A. He made the disclosure statement Ex.PW24/B. On 23.08.2010 accused Brijesh also surrendered and was also arrested vide memo Ex.PW24/C. He also made disclosure statement Ex.PW24/D thereafter, he filed the charge sheet. He denied the suggestion that there is difference in the signature of accused Brijesh on Ex.PW24/C and Ex.PW24/D. He denied the suggestion that the disclosure statement does not bears the signature of accused Brijesh.
35. HC Sant Lal was examined as PW25. He proved the previous involvement of accused Ekant Bansal as Ex.PW25/A.
36. Inspector Jas Mohinder Chaudhary was examined as PW26. He is the IO of the case and proved the investigation carried out by him. He is the IO of case FIR No;629/09 wherein the accused persons were arrested and disclosed about the State Vs. Irshad Ali etc. FIR No:350/09 Page 26 of 48 commission of this offence. He also on 03.01.2010 got recovered the Betel nut (Supari). He deposed that he received secret information that the looted property has been kept by Brijesh @ Guddu Pradhan of village Jia Pur they reached police station Mehnaz pur and made the arrival entry. He also requested the SHO to depute some police official for conducting the raid. SI Mohd. Saleem Javed joined the investigation along with the staff, they reached village Jia Pur 220 bags of Betel nut (supari) were recovered from SDRY Khadyan Vitaran Kendra. Those premises were under the supervision of Pradhan Brijesh Singh @ Guddu. The key of the room was provided by Munni Singh father of Brijesh Singh @ Guddu. Complainant Parveen Jain identified bags of supari as belonging to him. The seizure memo is proved as Ex.PW11/A. The bags were loaded in the truck and brought to police station S.P Badli and deposited in malkhana.
37. During cross examination he stated that Munni Singh and Ajay Kumar Tiwari were present at the time of recovery. They requested few persons from the village to join the recovery. But none agreed. No notice was given to those persons. No official from SGRY Khadyan Vitaran Kendra was called at the State Vs. Irshad Ali etc. FIR No:350/09 Page 27 of 48 spot. Brijesh Kumar accused was absconding at that time. The key of the room from where recovery was effected was produced by Munni Singh father of accused. He denied the suggestion that no recovery was effected from the possession of accused Brijesh or that the room was not under the possession of Brijesh. Thereafter prosecution evidence was closed. Statement of accused persons were recorded u/s 313 Cr.PC. Wherein they denied the entire evidence. Accused persons wished to lead evidence in defence and examined five witnesses.
38. Sh. Bharat Singh was examined as DW1. He deposed that he was employed as president at Sadhan Sehkari Samiti, Distt. Ajamgarh UP, since 2004. He has worked in that Samiti from 2008 to 2013. On 17.01.2010 he visited the office and found the bags of fertilizers and dye. Guddu Pradhan was not concerned with the godown of Sadhan Sehkari Samiti. Pradhan of village have no concern with godown and Sadhan Sehkari Samiti. Samiti is fully under the control of the SDM. Guddu Pradhan had not kept any bags of Supari or any other article in the godown.
39. During cross examination he stated that he has not State Vs. Irshad Ali etc. FIR No:350/09 Page 28 of 48 brought any document to show that he was posted as president of Khadyan Vitaran Kendra Sehkari Samiti, Behlotpur, Jia pur PS: Ajamgarh UP from 2008 to 2013. He deposed that he can produce the same. He denied the suggestion that godown was lying vacant. He cannot produce any document showing that the bags of fertilizer were kept in that godown. He denied the suggestion that on 11.12.2009 accused Brijesh @ Guddu kept the bags of Murgi dana and put his lock. He denied the suggestion that he told the secretary that he will return the key of the lock after one week. He also denied the suggestion that on 14.12.2009 the secretary went to the house of accused where accused told him that he had put some other articles in the room and will vacate the room lateron. He denied the suggestion that secretary informed the higher officers in this regard.
40. Ashok Kumar was examined as DW2. He deposed that on the intervening night of 22/23 December 2009 he was sleeping in his house. About 56 persons came in civil dress and forcibly lifted him from his house took him to PS: Rohini where he found that accused Irshad, Ekant, Sikander and Rafiq were already present there. Police officials took his signatures on State Vs. Irshad Ali etc. FIR No:350/09 Page 29 of 48 blank papers and lateron prepared various documents. Ashok Kumar is one of the accused and was examined u/s 315 Cr.PC.
41. During cross examination he deposed that his statement u/s 313 Cr.PC was recorded. He denied the suggestion that he was not lifted from his house on 22/23 December 2009. He denied the suggestion that he along with his coaccused committed dacoity on 10.12.2009 in the area of PS:
S.P. Badli. He denied the suggestion that he is deposing falsely.
42. Smt. Kiran wife of accused Ashok Kumar was examined as DW3. She also deposed on the lines of Ashok.
43. During crossexamination she stated that she was having mobile phone in the year 200910 but she does not remember the number. She does not remember if the number was 9289203327. She made a call to police at 100 number. She denied the suggestion that she did not make a call at 100 number at about 1:00 or 1:30 am. She admitted that her husband was involved in two criminal cases prior to 22/23 December 2009. After December 2009 her husband has been facing 8 to 9 cases. She cannot tell the name and designation of the police officials who took her husband in the night. She denied the State Vs. Irshad Ali etc. FIR No:350/09 Page 30 of 48 suggestion that her husband was not lifted from her house on the intervening night of 22/23 December 2009. She did not take any help from the neighbours or the relative. However she telephonically informed Smt. Kamla Devi on the same night. Smt. Kamla Devi came there along with her son. She did not raise any alarm. She did not lodge any written complaint with any senior officer.
44. HC Devender Singh was examined as DW4. He produced the summoned record that is DD No.4A dt.23.12.2009 and also the action taken on DD No.4A photocopy of the same has been taken on record as Ex.PW4/X.
45. Ct. Krishan Pal Singh from Police Station: Mehnaz Pur, Distt. Ajamgarh UP was examined as DW5. He brought the record with respect to the RTI application dated:31.03.2010 and the certified copy of the complete file is Ex.DW5/A running into 32 pages.
46. During crossexamination he deposed that he has no personal knowledge of the record. Thereafter, case was fixed for final arguments.
47. I have heard Ld. APP for the State, Ld. Counsel for State Vs. Irshad Ali etc. FIR No:350/09 Page 31 of 48 accused persons and perused the record.
48. Ld. APP submitted that in this case prosecution has proved and established the fact of looting of Supari from truck No.RJ14GA 6283 and also the truck from Manzoor Alam who was the driver and was examined as PW1 and conductor Sh. Ram Avtar examined as PW2. Both of them have fully supported the prosecution case and deposed that their truck was loaded with Supari from Banglore. There was another truck HR 47D 0420 which was also loaded with Supari and was driven by Rohtash. Both the trucks were coming to Delhi. Truck driven by PW1 was going ahead of the truck driven by Rohtash. At about 1:30 am they crossed the Shahjahan pur border. PW1 received call on his mobile phone made by Rohtash that there is some problem in his truck. After receiving this information PW1 stopped his truck, left PW2 in the truck and move towards the truck of Rohtash. He left the ignition key in the truck itself while moving. He also noticed one black 'Scorpio' in front of truck of Rohtash. Rohtash told him that there is no diesel in his truck. PW1 offered that he (Rohtash) can take diesel from his truck but Rohtash told that he would send his conductor to bring the diesel State Vs. Irshad Ali etc. FIR No:350/09 Page 32 of 48 from the nearby Petrol pump. In the meanwhile PW1 noticed that his truck is moving. When he started moving towards his truck he was surrounded by two persons one put pistol on his temple region. Then they dragged him to his truck, forced him to board the truck. He found that Ram Avtar had already been over powered. He was also made to sit in the truck. He was given some tablet and thereafter his hands and legs were tied, one tape was also put on his mouth. They regained consciousness and found themselves in Narela Bawana area in the fields. His driving license, Rs.7,000/ and mobile was missing. He identified accused Ashok as the person who put the pistol on his head. Ekant Bansal who was accompanying Ashok Kumar and also identified Irshad Ali and Sikander that these four persons were sitting in the truck at the time of incident. PW2 also corroborated the testimony of PW1. He stated that Manzoor Alam after receiving the call from Rohtash stopped his truck and moved towards the truck of Rohtash. In the meanwhile twothree persons boarded the truck. One of them put pistol on his temple region and forced him to eat something and 45 minutes thereafter he became unconscious. In the meanwhile Manzoor State Vs. Irshad Ali etc. FIR No:350/09 Page 33 of 48 Alam was also brought there. He identified accused Sikander and accused Irshad Ali who boarded his truck and that pill was administered to him by Sikander. Ld. APP submitted that both these witnesses are truthful, stood through the test of cross examination. Both of them have identified all the accused persons. There is also no reason for them to wrongly identify any of the accused. The mobile phone of this witness and Rs.700/ to 800/ were also taken away. Ld. APP submitted that all these accused persons have looted the truck as well as the goods loaded in the truck. There were more than five persons involved in the offence and hence the offence of dacoity has been committed. Identity of the accused persons have already been established. It is prayed that all the accused persons be held guilty u/s 395 IPC for committing dacoity and also u/s 328 IPC as they administered some stupefying substance to PW1 as well as PW2. After consuming the same they became unconscious.
49. Ld. Defence counsel submitted that there is no evidence against the accused persons that they committed any offence. Infact the case property was misappropriated by the PW1 and PW2 along with the owner of the truck i.e. Tarun Jain State Vs. Irshad Ali etc. FIR No:350/09 Page 34 of 48 examined as PW8. Tarun Jain is running the transport company with his brother Keshav Jain and both the trucks were belonging to Tarun Jain. Kultaran Singh who was examined as PW9 lodged the FIR against Tarun Jain that he has misappropriated the goods and the FIR u/s 406 and 407 IPC was also registered in this regard. This fact is also admitted by PW8 Tarun Jain and Kultaran Singh also stated that he got registered the FIR. Ld. Defence counsel submitted that this fact itself shows that infact they misappropriated the property but in order to save themselves they concocted a false story and implicated the accused persons. Ld. Counsel further submitted that in this case the testimony of PW1 and PW2 is doubtful regarding the commission of offence. According to PW1 after regaining consciousness he came to the office and met the owner and told him the entire story and he also came to know that Rohtash is also missing. Whereas according to the story he contacted the owner on 19.12.2010 only. PW2 deposed differently. He stated that from PCO he made call at 100 number from there the police took them to hospital and then they told the entire story to the owner. Whereas PW8 told that he got the information from State Vs. Irshad Ali etc. FIR No:350/09 Page 35 of 48 Manzoor Alam on telephone. But Manzoor Alam does not say so. Ld. Counsel submitted that even both these witnesses stated that they had seen the accused persons in the police station and therefore, when the test identification parade was conducted or the identification by them of accused persons in the court is of no consequence as the accused were already shown to them in police station as deposed by PW2 who deposed that he along with Manzoor Alam visited the police station where the accused persons were present and shown to them. Ld. Counsel submitted that infact PW1, PW2 in connivance with PW8 mis appropriated all the goods and falsely implicated the accused persons. It is prayed that there is no evidence on record of any looting or dacoity as alleged. Benefit be given to the accused. Even otherwise Ashok Kumar is concerned there is evidence of DW2 and DW3 that he was forcibly taken away by some persons on the intervening night of 22/23 December 2009 and was falsely implicated. The documentary evidence in this regard is already placed on the file as Ex.DW4/X which shows that there is a DD No.4 recorded on 23.12.2009 at 3:44 am that his husband has been taken away by 10 to 12 persons. On this one State Vs. Irshad Ali etc. FIR No:350/09 Page 36 of 48 police official went there and there is return entry at 4:20 am, according to which from house No.J631, Jahangir Puri a person has been lifted. The wife of that person met him and he told that 1012 persons came in civil dress and taken away her husband. Ld. Counsel submitted that this clearly shows that Ashok has been lifted from his house and falsely implicated in this case. It is prayed that there is also no evidence against accused persons and benefit be given to them and they be acquitted.
50. After hearing the arguments and going through the record I found that in this case the incident is of intervening night of 1112 December 2009, at the border of Haryana, Rajasthan, Shahjahan Pur. There the truck No.RJ14GA 6283 was taken away along with the loaded goods i.e. Betel nut (Supari). The star witnesses examined in this regard are PW1 and PW2. PW 1 was the driver on that truck and PW2 was the conductor. It is important to note that both these witnesses have corroborated each other. Supported the prosecution case and also stood through the test of crossexamination. Both these witnesses are consistent that their truck and another truck being driven by Rohtash having number HR 47B 0420 was loaded with Betel nut State Vs. Irshad Ali etc. FIR No:350/09 Page 37 of 48 (Supari) from Banglore. The other documents regarding the loading of the truck from Banglore and the witnesses have already been examined as PW8 the owner of the truck, PW18 who booked the truck, PW19 Commission Agent. Bility in this regard has already proved on record that these trucks were loaded and it is infact not in dispute also that these trucks were loaded from Banglore for coming to Delhi. According to evidence Rohtash who was the driver on the trcuk No.HR 47B 0420 made a call to Manzoor Alam on his mobile phone and told him that there is some problem in his truck. On receiving this information PW1 stopped his truck. He went towards the truck of Rohtash leaving PW2 in the truck. In the meanwhile 23 persons boarded the truck No.RJ 14GA 6283 they overpowered Ram Avtar on the point of pistol forced him to consume some pill and tied him. Thereafter, they started driving the truck. Rohtash told Manzoor Alam that there is no diesel in his truck when Manzoor Alam offered diesel from his truck Rohtash refused. In the meanwhile PW1 noticed his truck moving. He wanted to go towards his truck but Rohtash asked him not to do so but PW1 rushed towards his truck but before he reached his truck he was State Vs. Irshad Ali etc. FIR No:350/09 Page 38 of 48 overpowered by the accused persons on the point of pistol forced in the truck. He wasl also administered with some pills and his hands and legs were tied. Tape was put on his mouth and thereafter both PW1 and PW2 regained consciousness in the field of Narela Bawana Delhi. It is also important to note here that Rohtash though unloaded his truck as deposed by PW8 but thereafter he could not be contacted and also could not be arrested. It is also important to note that if Rohtash would not had made any call to Manzoor Alam PW1 due to which PW1 stopped his truck no such incident had taken place. It is also important to note that though Rohtash was having the mobile phone but he did not inform anybody neither the owner nor the police regarding the incident that the truck has been taken away by some persons or that Manzoor Alam has been taken on the point of pistol. All these facts points towards the involvement of Rohtash in the commission of offence. The accused persons have been identified by PW1 as well as PW2. PW1 has specifically stated that it was accused Ashok who put the pistol on his head. Accompanied by Ekant Bansal. PW2 has also identified other two accused persons Irshad Ali and Sikander. State Vs. Irshad Ali etc. FIR No:350/09 Page 39 of 48 The contention of the Ld. Defence counsel is that Ashok was lifted forcibly from his house and was implicated. It is important to note that the date on which accused was allegedly forcibly taken from his house is the intervening night of 22/23 December 2009 whereas this incident is of the intervening night of 1112 th of December 2009. There is no defence or evidence produced by accused Ashok or any other accused as to where they were on the intervening night of 1112 December 2009. Hence, in my opinion this defence has no bearing on the outcome of the present case.
51. The other defence taken by the accused persons is that they were shown to the witnesses. But it is important to note here that the Test Identification Parade of accused persons was conducted wherein they were identified and the test identification proceedings have also been admitted. It is also important to note that accused persons were in the police station as deposed by the witnesses and these witnesses also reached there but it was only during the police custody remand after the test identification parade that the witnesses reached there and in the presence of the witnesses the accused persons got recovered the case State Vs. Irshad Ali etc. FIR No:350/09 Page 40 of 48 property as deposed by PW26 as well as PW22. Hence, it is clear that both PW1, PW2 as well as PW8 went to the police station but it was only lateron and not before the test identification parade. Infact these witnesses also joined the investigation and in their presence the pointing out of the places of incident the place where they were thrown etc. was done. The date of test identification parade is 12.01.2010 whereas this pointing out was done on 14.01.2010 which clearly shows that it was after the test identification parade and hence the contention that the accused persons were previously shown to the witnesses and due to that they identified accused persons does not found any support or corroboration from the documentary or oral evidence available on record. There is also no evidence that the witnesses were having any enmity with the accused persons or have any reason to depose falsely against them. The identification of the accused persons cannot be disputed. Both the witnesses are as pointed earlier consistent, corroborated each other and have stood through the test of crossexamination. So far as the lodging of FIR by Kultaran Singh PW10 is concerned he himself has stated that earlier he believed so but State Vs. Irshad Ali etc. FIR No:350/09 Page 41 of 48 lateron he found that the property was not misappropriated by PW8 but infact it was looted hence, this contention that PW1, PW2 and PW8 misappropriated the case property also does not found support from any angle as Kultaran Singh PW9 himself stated that it was wrong thinking on his part. Keeping in view all these facts as 5 or more than 5 persons were involved in the offence therefore it would fall in the category of dacoity. So far as the offence of 328 IPC administering stupefying substance is concerned no such evidence brought on record by the police. Though both PW1 and PW2 alleges that they were forced to eat some pills due to which they became unconscious but no medical evidence in this regard has been placed on record. Both PW1 and PW2 were taken to the hospital but no gastric lavage has been seized to find out if there was any stupefying object found, hence, in my opinion prosecution has failed to prove the commission of offence u/s 328 r/w 34 IPC against the accused persons.
52. Ld. APP submitted that in this case there was recovery of 220 bags of the betel nut (supari) from Khadyan Vitaran Kendra, Sehkari Samiti, Behlol pur, Jia pur, PS: Mehnaz State Vs. Irshad Ali etc. FIR No:350/09 Page 42 of 48 Pur, Ajamgarh, UP from one room on 04.01.2010. Prosecution has examined PW11 Parveen Jain, SI Mohd. Saleem of PS:
Mehnaz Pur as PW12, Ct. Shambhu PW22, Inspector HR Malik PW23 and Inspector Jas Mohinder as PW26 they all deposed that on receiving information about the looted property in the room of the Khadyan Vitaran Kendra Sehkari Samiti they reached there, the room was found locked. It was told that this room is in custody and possession of one Brijesh Singh @ Guddu s/o Sh. Munni Singh. Munni Singh was called who brought the key from his house and opened the room. From that room 220 bags of the betel nuts (supari) were recovered which were identified by Parveen Jain as belonging to them. Ld. APP submitted that in this case Subhash Chander Mishra the secretary of the Samiti was examined though he had not supported the prosecution case but all other witnesses have specifically stated that this room was in possession of Sh. Brijesh Singh accused and i.e. why the key of that room was also in possession of Munni Singh the father of the accused. It has come in the evidence of PW22, PW23 and PW26 that the key was produced by the father of the accused Brijesh. The case State Vs. Irshad Ali etc. FIR No:350/09 Page 43 of 48 property was looted property as identified by Parveen Jain. PW1, PW2 as well as PW8 also corroborated this fact that the recovery was effected from the room in village Jia pur. Ld. APP submitted that the defence himself has brought on record the evidence to the effect that this recovery was effected from that room as is mentioned in Ex.DW5/A also. Ld. APP submitted that keeping in view the prosecution evidence as well as the documentary evidence produced by the defence Ex.DW5/A it is clear that there was recovery of 220 bags of betel nuts(supari) from the room of the Samiti from village Jia Pur which was in possession of accused Brijesh. Ld. APP submitted that onus which was on the prosecution has been discharged and it is established that the property which was taken away in the dacoity has been recovered from the possession of accused Brijesh Singh. It is prayed that he be held guilty and convicted u/s 412 IPC.
53. Ld. Defence counsel submitted that in this case there is no evidence that there was recovery from or at the instance of Brijesh Singh of the bags. Brijesh Singh was not present there. There is no evidence brought on record that the State Vs. Irshad Ali etc. FIR No:350/09 Page 44 of 48 room was in possession of Brijesh Singh. Subash Chander Mishra secretary of Samiti was examined as PW13, he did not support the prosecution case that the room was in the possession of Brijesh Singh or that any property was kept in that room by Sh. Brijesh Singh the accused. Ld. Counsel further submitted that there is another defence witness examined as DW1 who was the president and he also stated that the room was not in possession of Brijesh Singh and Brijesh Singh has nothing to do with that room. Ld. Defence counsel submitted that even otherwise there is also no evidence brought on record that Brijesh Singh have to do anything with this property. According to the prosecution case the property was in the possession of Vijay Yadav but Vijay Yadav has not been arrested so far and accused Brijesh has been falsely implicated. Ld. Defence counsel further submitted that as prosecution has failed to prove and establish that the room from where the supari was allegedly recovered was in possession of Brijesh Singh, therefore, benefit be given to Brijesh Singh and he be acquitted.
54. The onus was upon the prosecution to prove and establish that the looted property was recovered from a room of State Vs. Irshad Ali etc. FIR No:350/09 Page 45 of 48 Khadyan Vitaran Kendra Sehkari Samiti Behlol Pur, Jia Pur, PS:
Mehnazpur, Ajamgarh. Prosecution examined Sh. Parveen Jain as PW11. SI Md. Salim of PS: Mehnazpur as PW12, Ct. Shambhu as PW22 and Inspector H.R. Malik along with Inspector Jas Mohinder as Ex.PW23 and PW26. They all are consistent on the fact that 220 bags of betel nuts (Supari) were recovered from a room situated in that Samiti at village Behlol pur. They all were crossexamined at length but all of them stated that on the night of 03 rd and 04th January 2010 these 220 bags of betel nuts were recovered from there. The room was found locked and key of room was provided by Sh. Munni Singh father of accused Brijesh Singh. There is no other witness to this recovery and all of them have proved and established this fact beyond doubt that recovery was effected from this. Besides this oral testimony there is also documentary evidence produced by the defence as Ex.PW5/A which infact is an inquiry conducted on the basis of report and according to this report there was recovery of 220 bags of betel nuts (supari) from the room of Sehkari Samiti of village Jia Pur. The onus was also upon the prosecution to prove and establish that this recovery was State Vs. Irshad Ali etc. FIR No:350/09 Page 46 of 48 effected either from the possession of or at the instance of Sh. Brijesh Singh. It is admitted fact that Brijesh Singh was not present at the time of recovery. Brijesh Singh had also not pointed out that the bags were lying there. The prosecution has alleged that infact this room was in the possession of Brijesh Singh. To prove and establish this fact the prosecution examined PW13 Sh. Subhash Chander Mishra secretary of the Samiti but he has not supported the prosecution case that this room was in possession of Brijesh Singh or that Brijesh Singh has put these bags in that room. There is also no evidence brought on record that Sh. Brijesh Singh was infact in possession of this room or any room in that Samiti. There is also nothing on record either documentary evidence or oral evidence that Brijesh Singh in any manner connected with these bags or rooms of the Sehkari Samiti. The onus was upon the prosecution to prove and establish that these bags were kept there by Brijesh Singh or the room from where the bags were recovered was in possession of Sh. Brijesh Singh. Though the recovery is effected but prosecution has failed to prove and establish the fact that this recovery is from the possession of Brijesh Singh. Under the State Vs. Irshad Ali etc. FIR No:350/09 Page 47 of 48 circumstances as prosecution has failed to establish this fact ultimate conclusion which can be arrived at is that prosecution has failed to prove the guilt of accused Brijesh Singh that he was in possession of 220 bags of the betel nut (supari) which were looted in the dacoity.
55. Keeping in view the above discussion and the facts accused Brijesh Singh is acquitted for the offence punishable u/s 412 IPC. All the other accused persons are also acquitted u/s 328 IPC. However, all the accused except Brijesh Singh are held guilty and convicted for the offence punishable u/s 395 IPC. Accused Ashok is also held guilty and convicted for the offence punishable u/s 397 IPC.
Announced in the open court (Virender Kumar Bansal) today i.e. on 24.08.2016 ASJ-03/North/Rohini/Delhi State Vs. Irshad Ali etc. FIR No:350/09 Page 48 of 48